Rethinking Transgender Discrimination Under Title VII of the Civil Rights Act

Saks & Co. is facing a discrimination lawsuit by a former sales associate who alleges that she was harassed and fired for being transgender. Last month, Saks & Co. filed a motion asking a federal Texas court to dismiss the case on grounds that Title VII of the Civil Rights Act does not protect transgender employees from discrimination.

This prompts the question: Is it illegal to discriminate against transgender employees under Title VII of the Civil Rights Act? Thirty years ago, the answer might have been a clear “no.” In support of its motion, Saks relied on a line of federal circuit court cases beginning in 1984, which expressly state that discrimination based on an individuals’ gender identity is not discrimination based on “sex” within the meaning of Title VII. Based on this, Saks argued that it’s “well-settled” that transgender individuals are not protected under federal antidiscrimination laws.

However, the answer might not be as clear-cut as Saks hopes. In recent years, the U.S. has seen a changing tide when it comes to LGBT issues. An increasing number of states and cities have passed laws to prohibit discrimination based on gender identity and sexual orientation (although Texas isn’t one of them). The Defense of Marriage Act was also struck down by the U.S. Supreme Court, paving the way for federal recognition of state-sanctioned same-sex marriages. LGBT issues have also been increasingly highlighted in pop culture through television shows, movies, books, and the media.

Perhaps most importantly, though, Saks’s position is in direct opposition to that of the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing Title VII of the Civil Rights Act. The EEOC’s position is that discrimination based on “sex” includes discrimination based on gender identity (and sexual orientation for that matter). In a landmark decision in 2012, the EEOC ruled that discriminating against a transgender employee is the same as discriminating against an employee based on sex-stereotypes, which is illegal under Title VII. Since then, the EEOC has filed cases against a Florida employer and a Michigan employer for discriminating against transgender individuals.

Just last month, the Department of Justice followed suit. In a memo issued in December of 2014, the Attorney General announced that it will consider discrimination against transgender employees by state and local public employers to be illegal sex discrimination under Title VII.

For now, we’ll have to see how the issue plays out in court. But, regardless of what the Texas courts decide, the issue won’t be resolved nationwide unless the U.S. Supreme Court takes up the issue or Congress amends Title VII to specifically protect transgender employees.